41 U.S.

106
16 Pet. 106
10 L.Ed. 903

JOHN TOMPKINS, surviving partner of JOHN TOMPKINS

and
ADAM MURRAY, trading under the firm of TOMPKINS &
MURRAY,
Complainants and Appellants,
v.
LEONARD WHEELER et al., Defendants.
January Term, 1842

APPEAL from the Circuit Court of Kentucky. In the circuit court of

Kentucky, a bill was filed, on the equity side of the court, for the purpose
of setting aside a deed of assignment or mortgage made by Leonard
Wheeler, for the purpose of securing certain of his creditors, in preference
to the complainant, who was also a creditor.
At the November term 1837, of the circuit court, the complainants had
obtained certain judgments against the defendant Wheeler; and on the
application of the defendant, it was agreed, that no executions should be
issued upon those judgments until February 1838. The debt on which the
judgments had been obtained amounted to $12,000, which had been
purchased by the plaintiffs for $1000; the defendant having failed in 1814,
and this being one of the debts due by him at the time of his failure. He
afterwards entered into business in Kentucky, contracted a large amount of
debts, and obtained some property.
Five days before the time when the complainant had a right to issue
execution on the judgments, Leonard Wheeler executed a general
assignment or mortgage of all his property. The assignment provided for
the payment, in the first place, of all his debts contracted since his failure,
in 1814, giving to them a priority or preference, 'as all his means and
effects had been accumulated by the credit given to him in Kentucky; the
same being divided into two classes.' It provided, that among his old
debts, out of the surplus of his estate, which was expected to remain after
the first and second class of preferred debts had been satisfied, certain

debts, due by him in 1814, the judgments in favor of the plaintiffs not
being among them, should be paid; and not believing the effects assigned
would extend beyond the payment of these debts, no others were
designated. The assignment then proceeded to assign and transfer all the
property and effects to the creditors of the first and second class, in trust to
pay the debts according to the preference and classification in thr same;
giving to the said creditors, or a majority of them, power to niminate and
appoint an agent, attorney or trustee, to carry the purposes of the
instrument into full effect.
On the 15th of February 1838, writs of fieri facias were issued on the
judgments, which were returned by the marshal 'nulla bona.' The
appellant filed a bill in the circuit court, praying that the deed of
assignment executed by Wheeler should be decreed fraudulent and void,
as it regarded the complainant. The bill also alleged acts done by the
defendant, Wheeler, for the concealment of property, and also the nominal
creation or increase of debts which were included in the preferences made
by the assignment, and other acts of fraudulent collusion; and also, it
alleged, that the property assigned had been left in the hands of the
assignor, and the creditors had never appointed an agent or trustee, who
had taken charge or direction of the property assigned. In the opinion of
the court, delivered by Mr. Justice THOMPSON, other facts are stated,
which were taken notice of by the court. The circuit court made a decree
dismissing the bill, and the complainants prosecuted this appeal.
The case was submitted to the court, on a printed argument, by Ogden, for
the appellant; and by Crittenden, who presented to the court the printed
argument of M C. Johnson, for the appellee.
D. B. Ogden, for the appellant.The right and power of a debtor to give a
preference to some bon a fide creditors over others, is not denied. But such
preferences are no favorites in a court of equity, in which 'equality is
equity;' yet, inasmuch as such a deed is good and valid at law, equity
follows the law, and will support it. But a court of chancery will look
narrowly into all the circumstances of the case; and if they find the deed
tainted in the smallest degree with fraud, they will declare it void. A
preference may be given to some creditors over others; but, in giving that
preference, the debtor must act bon a fide. Independent of the questions of
law arising in this case, there are strong circumstances to show, that in
making this assignment, the defendant, Wheeler, did not act with good
faith towards the complainant. He obtained from him an agreement to
postpone issuing any executions upon his judgments, until after the first of
February; it was in bad faith for him to avail himself of this postponement,

thus obtained, to place all his property out of the reach of an execution. It
is evident, that this assignment was made to defraud and injure the
complainant, and to prevent his recovering his debt. Another strong
circumstance against the fairness and good faith of this assignment, is the
following: The assignment directs that an old debt, due from him to F. &
J. Sexton, of New York, for the sum of $3120, with interest at the rate of
six per cent. from August 1814, shall be paid; and it also recites that this
debt has been assigned to Norman Porter, who now holds the same. Now,
this Norman Porter, it appears throughout this record is one of the most
intimate friends of Wheeler, and one of those favorites for whom he
wished to provide, in preference to the complainant. Porter's answer states,
that he paid $307.50, Kentucky money, for the debt of F. & J. Sexton, in
January 1838. He began to negotiate for it in December 1837. He
purchased it, without any arrangement with or suggestion from Wheeler.
He had heard of the prosecution by Winter, and of Wheeler's intention to
assign his property for the benefit of his other creditors, to prevent Winter
from recovering the amount of his judgments; and he, therefore, bought up
this debt of the Sextons. The amount of principal and interest on this debt,
calculating the interest at six per cent., from August 1814, to November
1837, is $7422.40; which this Mr. Porter receives, and for which he paid
but $307.50.
The assignment purports to convey his property directly to the creditors
named in it. There is no proof that it was delivered to any of them; and it
is in proof, that several of the creditors never knew of its existence.
Wheeler continued in possession of the property; it never was delivered
over; this of itself is evidence of fraud. 1 Pet. 356; 4 Mason 321; 3 Maule
& Selw. 371; 15 Johns. 571; 4 Bibb 445. The assignment gives the
creditors power to name a trustee to take the property; no such trustee has
ever been appointed. The sale of some property to Putnam was evidently
made for the mere purpose of preventing the judgment-creditor from
recovering his demand; and is, therefore, void. Cowp. 434; 1 Burr. 474; 1
Camp. 333. This assignment, the court will recollect, was made but four
or five days before the time during which execution was to be stayed
expired, and the negotiation which brought about the assignment of this
debt of the Sextons, was not entered upon by Porter, until December, long
after the judgments were entered, and Porter himself admits, that he knew
of the intended assignment by Winter, and that their debt was to be
provided for. It appears, that a more fraudulent attempt than this to give a
preference over a bon a fide creditor rarely occurs. 7 Pet. 605; 2 Gallis.
557; Pick. 71.
Johnson, for the appellees.The assignment of Wheeler to his creditors is

charged to be fraudulent, because it was made by Wheeler, without the

knowledge or assent of the creditors therein named, and was never
delivered to, nor accepted by them.
It is contended, that the fact is otherwise. None but F. L. Turner failed to
give assent to it; and the mortgage-funds can, under no contingency, pay
his debt; and his interest in them amounts to nothing. As to all who do not
admit that they did not assent, the presumption of law is, that they did
assent, as the deed was beneficial and had no condition attached. See
Halsey v. Whitney, 4 Mason 206; Wheeler v. Sumner, Ibid. 183. This
presumption particularly applies to all the non-residents, as to whom the
suit is dismissed. All others have answered, or by agreement are
considered as having answered; assenting to the mortgage, or stating that
they were paid, before process was served. It may not appear from the
answers of some, when the assent was given, but according to the practice
of the United States' courts, a matter alleged but not answered must be
proved on final trial. See Young v. Grundy, 6 Cranch 52. If a more
specific answer had been desired, exceptions should have been taken. All
exceptions to insufficient answers are expressly waived by agreement.
In regard to delivery, it is well settled, that if a deed be delivered to a
stranger, for the use of the grantee, without any condition annexed,
making it an escrow, it is a delivery to the grantee. Shep. Touch. 58. In
this case, the deed was delivered to the clerk of the Fayette county court,
for the use of the grantees, to be recorded in his office. It has also been
decided, that if a deed of feoffment be made to four, but only delivered to
three of them, and livery of seisin made to the three, for the use of all,
without the assent of the fourth, and when it comes to his knowledge, he
disagrees to it, still the freehold is in him, and so remains, until disclaimer
in court; and so, if a deed be made of goods and chattels, and be delivered
to a stranger, for the use of donee, there the goods and chattels vest in
donee, before notice or agreement; but in this case, donee may make
refusal in pais, and by such refusal, the interest is divested. See Butler v.
Baker, 3 Coke's Reports 26, 27. See also the case of Doe on dem.
Garnons v. Knight, 5 Barn. & Cress. 471, for a full argument on the effect
of delivery to a stranger, and for a collation of all the authorities.
According to these principles, so far as the vesting of legal title is
concerned, it matters not, whether the grantees were consulted or knew of
the deed or not; the property embraced in it was vested in them, by force
of the delivery to the clerk, for their use, until their disagreement. In cases
of deeds of trust, where the property is conveyed to a stranger, for the
benefit of creditors, and these creditors not parties to the deed, it has been
decided by this court, in Marbury v. Brooks, 7 Wheat. 556; and Brooks v.

Marbury, 11 Ibid. 78; Brashear v. West, 7 Pet. 608, also in the case of
Halsey v. Whitney, 4 Mason 206; and Wheeler v. Sumner, Ibid. 183, that
the assent of the creditors is not necessary to the validity of such a deed;
and in the case of Marbury v. Brooks, supra, an assent, after a creditor had
attached the goods, was decided to be sufficient to make the deed valid
from its execution.
The rule, that in absolute sales of chattels, the possession remaining with
the grantor, is a fraud per se, has been fully recognised in Kentucky; but it
is equally well settled, that this rule has no application to mortgages and
deeds of trust. See 5 Litt. 243; 1 J. J. Marsh. 282; 3 Ibid. 453. In Snyder v.
Hitt, 2 Dana 204, the court say, that the possession of the mortgagor is not
fraudulent, and in general, no evidence of fraud. This court, in United
States v. Hooe, 3 Cranch 73, decide, that where the deed provides for the
grantor retaining possession, it is not fraudulent, and in 1 Pet. 449, the rule
is held only to apply where the possession of the grantor is inconsistent
with the deed.
The reason of this distinction in Kentucky, is two-fold. 1. The possession
of the mortgagor is not inconsistent with the deed: and, 2. All deeds of
mortgage and of trust are required to be recorded.
The equity of redemption, or resulting trust of grantor, and his interest in
freeing himself from debt, by making the property as available as possible
for that purpose, are such actual and legal interests in the property, as all
courts will regard and protect, and are such interests as render it not only
consistent with the transaction, but highly beneficial to all parties, that the
debtor, if honest and capable, should remain in the possession of the
incumbered property. He is the person best acquainted with the property
and its capabilities, and his interest perfectly coincides with that of the
creditors, in making it as valuable as possible.
There can be no doubt, that the assignment in question is not an absolute
sale, but a mortgage or deed of trust. The property is assigned for the
purpose of paying the debts. Upon their payment, the property, by
operation of law, results to the grantor. But by whatever name it may be
called, it is, in substance and reality, a mortgage; and Wheeler has, in the
property, all the interests which are above enumerated as appertaining to
the mortgagor: and there is, consequently, the same consistency of his
possession with the deed, that there could be were it a mortgage, in the
most nicely technical sense. In the deed, it is provided, substantially, that
he shall remain in possession, managing the fund, until the grantees, by
agent or otherwise, take possession.

In Kentucky, all mortgages and deeds of trust, whether of real or personal

estate, on legal or equitable interests, are required to be recorded in the
offices of the county courts. Brown and Morehead's Statute Law of
Kentucky, 448-9; also, see Session Acts of 1836-37, p. 255; also, Session
Acts of 1838-39, p. 96. These statutes would change the rule as to
possession, even had it previously existed, by destroying the reason of it.
In regard to chattels, the only ownership the world can know, is the
continued possession. Being capable of transfer, by the most secret
contracts, without the least solemnity or notoriety, purchasers and
creditors could be deceived and defrauded without limit, did not the law
provide for their security some visible test of ownership. The continued
possession is the test as to chattels, but it is not, of real estate, the titledeeds being the evidence, and accordingly, we find the rule does not
extend to real estate. In Kentucky, the notice of incumbrances is the
record, and purchasers and creditors are completely guarded against being
defrauded by mortgages, &c., by an easy reference to the office of the
county court. The property is not, however, of the character to which the
rule applies. Consisting of choses in action, they are incapable of bisible
possession, and pass by assignment. So this court held, in the case of
Spring v. Sough Carolina Insurance Company, 8 Wheat. 268.
If a debtor gives up all he has, to bon a fide creditors, and such, all he has
provided for, are admitted to be, and he reserves no right, power or benefit
to himself, it is impossible that this can be fraudulent. The law not only
does not condemn, but approves and sanctions it. See the luminious
opinion of Justice STORY in the case of Halsey v. Fairbanks, 4 Mason
207, and the numerous authorities collated and ably commented on.

THOMPSON, Justice, delivered the opinion of the court.

This is an appeal from the circuit court of the United States, for the district of
Kentucky. The bill filed in the court below was for the purpose of setting aside
a certain deed of assignment, made and executed by the defendant, Wheeler, for
the purpose of securing to certain enumerated creditors the avails of his
property, to the exclusion of the complainant; and that the complainant may be
decreed to have satisfaction of his judgments set out in the bill, out of the
property conveyed by the deed.

The bill sets out, that at the November term of the circuit court of the United
States, in Kentucky, in the year 1837, the complainant recovered two
judgments against Leonard Wheeler; one for the sum of $4000, with interest,

from the 21st of February 1814; and the other for $891.53, with interest for the
same time; upon which judgments executions were not to issue until the 1st of
February 1838; at which time executions were duly issued, and put into the
hands of the marshal of the district to be executed; upon which the marshal
returned, that he found no property of which to make the money on the
executions. The bill further states, that on the 27th of January 1838, the said
Leonard Wheeler, by deed of trust or assignment, made a conveyance to certain
of his preferred and specified creditors (of which the complainant was not one)
of certain property therein specified, to pay and discharge certain specified
debts, which deed was duly acknowledged and recorded in the proper county;
and the bill charges, generally, that this deed is fraudulent and void. It
particularly charges, that the deed was made without the knowledge, privity or
assent of the creditors named therein, and who are the parties to whom the deed
is given; that the deed was never delivered to, nor accepted by, the grantees;
that it was made with intent to deceive and defraud his just creditors, who were
not included in its provisions; that the possession of the property conveyed by
said deed, was retained by the said Wheeler, and never delivered to the parties
of the second part, or any one of thom; that the deed was lodged in the clerk's
office for record, after the rendition of the complainant's judgments, and but a
short time before he was authorized to issue execution upon his judgments. It
further charges, that the sale of the goods to Joseph Putnam, one of the
creditors named in the deed of trust, was fraudulent, and without any valuable
consideration; and that the business was afterwards conducted in the name of
the said Putnam, but for the use, in whole or in part, of the said Wheeler. It
further charges, that Joseph Swift, another defendant, has for several years past
been employed in carrying on the grocery business, in which the said Wheeler
was interested; and that the said Swift is now in possession of goods, or money,
or other property, belonging to the said Wheeler, or is indebted to him for the
same. It also charges, that Norman Porter, another of the preferred creditors,
had money in his hands belonging to the said Wheeler, and to be used for his
benefit; and that the note mentioned in the said deed of $3170, was purchased
by said Porter for Wheeler's benefit, and with his money. The bill likewise
prays, that Abel Wheeler, one of the preferred creditors, may answer and state
particularly, whether he has at any time lent and advanced to Wheeler money or
other property, and whether he now holds any note or memorandum, or other
evidence of debt against him. The bill prays that the said Leonard Wheeler, and
the above-mentioned preferred creditors, may answer specially and particularly
to the several interrogatories put in the bill, in reference to the transactions
between them severally and respectively.
4

The several answers of Leonard Wheeler, Porter, Putnam, Swift and Abel
Wheeler, contain a full and explicit of all the charges contained in the bill,

tending in the least manner to sustain the allegations of fraud or collusion, or

any secret or unfair transactions between them, or either of them, with Leonard
Wheeler. And there is no proof offered to sustain these allegations; they may,
therefore, be dismissed, as wholly unsupported.
5

The bill calls upon the said Leonard Wheeler to state how and to whom he
delivered the deed of trust; in answer to which he states, that every creditor
provided for by the deed, was a real and bon a fide creditor. That he consulted
with a number of his creditors, naming them, before making the deed; all of
whom approved of it; and that he knows of none who disapproved of it, or
rejected the benefit of its provisions; and some of them have accepted of it in
writing, which appears by the exhibits annexed to the answer. That being
satisfied with the propriety of the measure, he made and executed the deed, and
left it in the proper office, to be recorded for the use of his creditors. He admits,
that the funds mentioned in the deed of trust, remained in his possession; and
that the creditors have never availed themselves of the privilege of appointing a
trustee; having confidence, as he presumes, in the correctness of his
management of the business. And he further states, that he has gone on in
collecting the choses in action, and paying over the proceeds to the creditors,
according to the provisions of the deed of trust. The answer of Wheeler, with
respect to the delivery of the deed, and the possession and management of the
funds, is corroborated by the answers of a number of the creditors, who are
made parties, and called upon to answer on these points. They say, that they
were consulted before the deed was executed, and approved of it then; and
accepted it, when made. That no trustee has been appointed, because they had
full confidence in Wheeler, and desired him to continue in the management of
the business.

There are several amended bills, with the answers thereto, bringing up some
new matters, but not of sufficient importance to require any special notice. The
above statement of the bill and answers presents all the material questions
which arise upon the merits of this case. It is deemed unnecessary to notice the
objections made to the jurisdiction of the court below, either on the ground that
Elisha I. Winter, the real party in interest, should have been made the party
complainant in this suit; or that there is a want of proper parties, defendants, to
enable the court to make a decree upon the merits. The conclusion to which we
have arrived supersedes the necessity of considering these questions.

Although the right and power of a debtor to give a preference to some of his
bon a fide creditors, to the exclusion of other, has not been denied on the part of
the complainant; yet, it has been urged, in argument, that such preferred
creditors are no favorites in a court of chancery, where, it is said, equality is

equity; and that a court of chancery will look narrowly into all the
circumstances, and if it be found, that the deed is tainted in the smallest degree
with fraud, it will be declared void. And it has been insisted, that in the present
case, there are strong circumstances to show, that in making this deed of trust,
the defendant Wheeler did not act in good faith towards the complainant. That
he obtained from him an agreement to postpone issuing executions upon his
judgments, until after the first of February; and that a few days before that time,
he made the assignment in question, so as to put all his property out of the reach
of the executions; and that this was in bad faith, which ought not to receive the
sanction of a court of equity. It may be observed, in the first place, that there is
no evidence of any deception practised by Wheeler to lull him to sleep, or
procure any delay in issuing executions on the judgments. It was done in the
ordinary course in judicial proceedings. And if the principle be sound, that a
debtor may lawfully apply his property to the payment of the debts of such
creditors as he may choose to prefer, he may certainly elect the time when it is
to be done, so as to make it effectual. And such preference must necessarily
operate to the prejudice of creditors not provided for; and cannot furnish any
evidence of a fraudulent intention. But the circumstances of the present case
are such as not only to remove all ground for any charge of fraud, but even of
injustice or unfairness in the conduct of Wheeler. Although it may be admitted,
that John Tompkins is properly made complainant, yet it is manifest from the
record, that he is a mere nominal party, and that Elisha I. Winter is the real
party in interest. This is shown by the answer of Wheeler, and proved by the
testimony of William Fellows; who swears that in the latter part of 1836, or the
beginning of 1837, Winter, through his agent, applied to him, to purchase the
claim of Tompkins, which had been sent to him for collection. That he offered
$1000 for it, which was not at that time accepted. That in the summer of 1837,
Winter himself made the same offer which his agent had made; and again, in
the fall of 1837, he renewed the offer of $1000, and expressed his opinion of
Wheeler's condition, when, with the opinion of some others, who he supposed
knew Wheeler's circumstances, he in the month of October 1837, sold the
claim to Winter for $1000; believing that he was purchasing it for the benefit of
Wheeler. That, a few days after the sale, he received a written request from
Winter not to let it be known that he had the control over the claim. Thus we
see great anxiety in Winter to purchase a claim against a man embarrassed and
in failing circumstances; and the consideration paid for it shows that the claim
must have been considered almost desperate. Only $1000 given for a claim
which, by the judgments stated in the complainant's bill, including interest,
amounted to between $11,000 and $12,000. These circumstances, independent
of the statements in Wheeler's answer, are calculated to cast some suspicion
upon the conduct of Winter, and to justify the inquiry, whether he comes into
court with clean hands, and can justly reproach Wheeler with bad faith and
unfairness towards him. Wheeler's circumstances were extremely embarrassed,

if not desperate, and he found impending over him two judgments amounting to
nearly $12,000, in the hands and under the control of Winter; who he had
certainly no reason to believe was friendly to him; and which judgments, if they
could have been enforced to their full amount, would have swallowed up a great
proportion of his property. Was he not, under such circumstances, authorized,
by every principle of justice and honesty, to secure, so far forth as he could, his
bon a fide creditors? That the debts of all the creditors preferred in the deed of
trust are bon a fide debts, is fully established; not only by the proofs, but is
admitted on the record, by an agreement which, among other things, states,
'that the genuineness of the debts provided for in Wheeler's assignment will not
be contested or called in question on the argument.'
8

That a debtor has a legal right to prefer one or more of his creditors over others,
when the transaction is bon a fide, is not an open question in this court. That
point was settled in the case of Marbury v. Brooks, which came twice before
the court under circumstances somewhat different, and is reported in 7 Wheat.
556, and in 11 Ibid. 78. That this assignment was a bona a fide transaction
between Wheeler and his preferred creditors, is clearly established by the
proofs. Every allegation in the bill, suggesting fraud or collusion, is fully met
and denied by the several answers, and is wholly unsupported by any proofs.

But several objections have been taken to the legal effect and operation of this
deed, on other grounds that that of fraud. That it was made by Wheeler, without
the knowledge or consent of the creditors therein named; that it was never
delivered to nor accepted by the creditors; that possession of the fund was
retained by Wheeler, and no trustee appointed according to the provisions of
the deed.

10

Some of these objections are not founded in fact. It is true, that it does not
appear, that all the creditors had any knowledge of the deed, before it was
executed. But it does appear, from the answer of a number of the creditors
named in the deed, that they were advised of the necessity of Wheeler's
securing them, and informed of his intention to secure them, before the deed
was executed, and approved of it, and accepted the benefits of its provisions;
and since that time, have been paid their debts in full. And there is no evidence
that any one dissented. F. S. Fuller says, he was never consulted with, about
making the deed, or informed of it, before its execution; and that he has never
accepted of its provisions. But he does not say, that he has ever refused to
accept of the provisions in his favor; and he may not, therefore, have precluded
himself from still accepting. This deed is absolute upon its face, without any
condition whatever attached to it; and being for the benefit of the grantees, the
presumption of law is, in the absence of all evidence to the contrary, that the

grantees accepted the deed. In the case of Marbury v. Brooks, it is said by the
court, that an assignment for the benefit of preferred creditors is valid, although
their assent is not given at the time of its execution; if they subsequently accept
in terms, or by actually receiving the benefit of it. Deeds of trust, say the court,
11 Wheat. 96, are often made for the benefit of persons who are absent, and
even for persons who are not in being; whether they are for the payment of
money, or for any other purpose, and no expression of the assent of the persons
for whose benefit they are made has been required, as preliminary to the
vesting of the legal estate in the trustee; such trusts has always been executed,
on the idea, that the deed was complete, when executed by the parties to it. The
omission of creditors to assent to the deed, or to claim under it, may, under
suspicious circumstances, afford some evidence of fraud. But real bon a fide
creditors are rarely unwilling to receive their debts from any hand that will pay
them.
11

It is not true, that the deed remained in the possession of Wheeler; it was sent to
the clerk's office to be recorded. It was, of course, placed in the hands of the
clerk to be recorded, for the uses and purposes expressed in the deed, and, of
course, for the benefit of the creditors named in it. It was put out of the
possession and control of the grantor. The grantees in the deed are numerous,
and all could not have the actual possession of it. It is laid down in Sheppard's
Touchstone 58, that if a deed be delivered to a stranger, for the use of the
grantee, without any condition annexed, making it an escrow, it is a delivery to
the grantee. The delivery to the clerk to be recorded, may well be considered as
falling within this rule. This principle is fully recognised in the case of Garnons
v. Knight, 5 Barn. & Cres. 471, that a delivery of a deed to a third person, for
the use of the party in whose favor it is made, where the grantor parts with all
control over the deed, is effectual, and operates from the instant of such
delivery.

12

If the fund had remained in the possession of Wheeler, for his own benefit, it
might have cast a suspicion upon the fairness of the transaction; but there is no
proof of any such object or design, nor of any fact from which an inference of
mala fides can be drawn; but on the contrary, the object of his continuing in the
possession of the property is satisfactorily accounted for by the circumstances
of the case. It consisted principally of unsettled accounts, and choses in action,
which he was much more competent to settle than a stranger could have been.
It was, therefore, for the benefit of the creditors, that he continued to settle up
these accounts and pay over the money to his creditors, as the proofs show that
he did. This was by the express consent of some of the creditors, and the
presumed consent of all, as no dissent or complaint appears to have been made
by any; and no one had any right to complain, but the parties who were to

receive the benefit of the assignment. This possession was held at the will and
pleasure of the creditors, which they could have withdrawn at any time, if
dissatisfied with the management of Wheeler; and this was a substantial
compliance with that part of the assignment which relates to the appointment of
an agent or trustee, for the purpose of executing and fulfilling the trusts and
purposes of the assignment. The creditors were, of course, to be the judges of
the fitness and competency of such agent or trustee; and they were the only
parties interested in the faithful discharge of his duties. No formal appointment
was necessary; an express or implied assent of the creditors to Wheeler's acting
as agent or trustee, was all that could be required, according to the fair
interpretation of the assignment.
13

We are, accordingly, of opinion, that the decree of the circuit court, dismissing
the bill without prejudice, be affirmed.

14

Decree affirmed.

Halsey v. Fairbanks, 4 Mason 206; Lawrence v. Davis, 3 McLean 177.

Jones v. Sleeper, 2 N. Y. Leg. Obs. 132.